Moses Charariza v Spencer Farayi Matipano

The respondent entered into a sale agreement with the appellant for a Hino truck (registration AEF 9183) for US$12,000. The appellant paid US$10,200, leaving a balance of US$2,800. A second agreement was executed on 17 May 2021 providing for payment of the balance in installments of US$500, with the final payment of US$300. The agreement stipulated that if any payment was late, the respondent had the legal right to recover the vehicle. The appellant failed to pay the installments as agreed. Despite entering an appearance to defend, the appellant did not file a plea after being served with a notice to plead. The respondent obtained default judgment for loss of business of US$7,000 or equivalent at RBZ auction rate, or alternatively repossession of the motor vehicle. The appellant then applied for rescission of default judgment and an interim stay of sale of the vehicle. The Magistrates Court dismissed the application for rescission and discharged the interim stay. The appellant appealed to the High Court.

• Whether the court a quo erred in resolving the matter on papers despite alleged material disputes of fact regarding the purchase price and payment terms
• Whether the notice to plead was properly served on the appellant's wife at his place of residence
• Whether the appellant had a bona fide defence with reasonable prospects of success
• Whether the appellant provided a reasonable explanation for his default in filing a plea
• Whether the court sanctioned an illegal transaction by enforcing a contract denominated in US dollars
• Whether the claim for damages was properly quantified and proved
• Whether the alternative relief of repossession was authorized by the sale agreement

The appeal was dismissed with costs. The order of the Magistrates Court dismissing the application for rescission of default judgment and discharging the interim stay of sale was confirmed.

For an application for rescission of default judgment to succeed, the applicant must establish: (1) a reasonable explanation for the default in filing a plea or appearing; (2) the bona fides of the application to rescind; and (3) a bona fide defence that carries some prospects of success. Service of process on a responsible person at the chosen address of service is valid service under Order 7 r 10(c), and no signature of the person served is required for an affidavit of service to constitute proof of proper service. Courts will not rewrite contracts freely and voluntarily entered into by parties, nor excuse parties from the consequences of such contracts, even if onerous. Where parties have expressly agreed to remedies for breach (including repossession), courts will enforce those agreed terms.

The court observed that WhatsApp service does not constitute acceptable electronic service under the rules, as electronic mail generally means email and WhatsApp is not email. The court also noted that a plaintiff claiming damages must place before the court all evidence reasonably available to prove damages, though strict proof is not always required - what must be established is that the plaintiff suffered some damages, with the quantum being the matter to be determined on available evidence. The court commented that making damaging allegations of connivance without supporting evidence is inappropriate and potentially defamatory.

This case reinforces important principles in Zimbabwean civil procedure regarding rescission of default judgments, including: (1) the requirements for successful rescission applications as established in Stockil v Griffiths; (2) the standards for valid service of process on responsible persons at an address of service; (3) the principle that courts will not rewrite contracts freely entered into by parties or excuse them from consequences of onerous terms (following Magodora v Care International Zimbabwe); (4) the evidentiary requirements for proving damages for breach of contract (following Wynina (Pvt) Ltd v MBCA Bank Limited); and (5) that parties applying for rescission must demonstrate not only a reasonable explanation for default but also bona fide defences with realistic prospects of success on the merits.